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In a decision issued on February 17, 2017 (Fuller v. Hannaford Brothers Company, App. Div. 7-17), the Maine Workers’ Compensation Board Appellate Division revisited the two-pronged “arising out of” and “in the course of” standard necessary for an injury to be work-related. As many readers know, an injury must both “arise out of” and “in the course of” employment for the injury to fall within workers’ compensation coverage. Generally speaking, “arising out of” means that the injury must have its genesis in some duty, motion or activity required of the employee in the normal course of her work. “In the course of” means that the employee must have been at a work or work-related location, performing work or otherwise advancing work interests. The idea behind the two-pronged requirement is to separate those injuries that the employee may suffer in normal life, but for the fact that the employee just happened to be at work, from those injuries that truly have a cause related to some aspect of the work. In this manner, workers’ compensation coverage is limited to injuries that are tied to the work, rather than becoming a supplemental form of health insurance. Anecdotally, Maine, with its aging and deconditioned workforce, has seen an increase in claims that appear to be non-occupational, pre-existing albeit occasionally quiescent conditions brought under the umbrella of work-related injuries due to minor work activity or claimed work events. Examples include overuse claims when the work performed by the employee is highly mechanized and non-repetitive, or degenerative joint claims when the body habitus of the employee coupled with the employee’s age and work history suggest that there is no link to work.

Jacob Abilt (not his real name) was a covert employee for the CIA until his employment was terminated in October 2011. After his termination Abilt argued that despite having informed the CIA he had been diagnosed with narcolepsy, he was terminated as a result. The facts are limited, as the court noted: “Many of the basic facts regarding Abilt’s employment with the Agency are classified, as are the job responsibilities and even the identities of most of his former supervisors and co-workers.” What was made public is that as an accommodation, Abilt requested that he be permitted to take periodic naps; a request which his then-supervisor granted. Abilt, however, was then assigned to temporary duty yonder (TDY) overseas in a warzone. He accordingly was assigned a new supervisor.

On January 22, 2017, employers must use an updated version of the Form I-9, making the previous I-9 form (dated March 8, 2013) obsolete. The United States Citizenship and Immigration Services (“USCIS”) issued the new version on November 14, 2016. The core requirements of the Form I-9 remain unchanged, but there are substantive changes including:

Increase in guidance in the instructions as to how to complete the form from six pages to fifteen pages

Changes to Section 1 (the portion completed by the employee):

An employee can no longer leave a space blank, but instead must enter “N/A” in each field that previously would have been blank

Foreign nationals can now provide an alien registration number if they are authorized to work in the U.S. or provide a Form I-94 admission number or foreign passport number.

Requires employees to affirmatively answer that they did not use a preparer or translator.

Changes to Section 2 (the portion completed by the employer):

Employer is required to enter the corresponding number of the employee’s attestation of citizenship or immigration status from page 1.

Space for the employer to make notes or record additional information.

On Thursday, January 19, 2017, the Eighth Circuit issued an opinion in Guenther v. Griffin Constr. Co., 16-1760 (8th Cir. Jan. 19, 2017), and held that a claim for compensatory damages brought under the Americans with Disabilities Act (ADA) survives the death of the aggrieved party. The case involved an employee who was terminated from Griffin Construction in 2008 after overseeing construction projects for four (4) years. He claimed that he was terminated as a result of his diagnosis with cancer.

The former employee filed a charge of discrimination with the EEOC, but died before the administrative process was complete. The EEOC issued a right-to-sue letter, having found reasonable cause, and the administrator of the estate filed suit under the Arkansas Civil Rights Act as well as Title I of the ADA. Griffin Construction moved to dismiss (arguing the claims did not survive death) and the district court agreed, finding the ADA claim abated at death and entered judgment on the pleadings for Griffin Construction.

As most readers are aware, the Department of Labor has appealed the November 22, 2016 Order of Judge Amos Mazzant of the United States District Court for the Eastern District of Texas which preliminarily enjoined the December 1, 2016 implementation of increases to the salary threshold under the FLSA overtime regulations. The Department of Labor has already filed its brief with the Fifth Circuit Court of Appeals and on Tuesday, a group of 21 states filed their responsive brief with the Fifth Circuit arguing that the November 22, 2016, preliminary injunction issued by the District Court should be upheld.

The states’ brief argued that the Fair Labor Standards Act does not empower the United States Department of Labor to establish a salary threshold for determining whether an individual qualifies for the executive, administrative, or professional exemption to the federal overtime standards.

With technology advancing at the current rate, the dark ages referenced isn’t ten or fifteen years ago, but instead, two or three. If your capacity for reviewing policies and practices at the beginning of the year is limited, working with your information technology department and crafting up-to-date and relevant policies and practices related to technology in the workplace should be at the top of your list.

Activity tracking devices, smart glasses, and other employee efficiency tracking devices no longer serve as the baseline for technology in the workplace. Last year, Sony filed a patent for a “smart” contact lens which will record images to an internal storage device so that users can “easily and quickly access” recordings. How could this new technology effect your current confidentiality provisions? Or, if you still have guidelines prohibiting recordings in the workplace (see the NLRB’s view on that here), what effect will these contacts have on your current policies?